7
jurisdiction. Consequently, the Court shall limit itself to decide, in due time, on these matters -and in any event it could not exceed the scope of this matter without the risk of adopting an ultra
petita decision--. In adopting this position, the Court shall not be found to lack jurisdiction, since
Nicaragua has expressly accepted that the Court has jurisdiction over such a matter.
26.
Therefore, the Court holds that this preliminary objection is inadmissible and declares itself
competent to hear the present case.
27.
The second objection interposed by the Government is the failure of the Commission to
comply with the requirements of admissibility as provided for in Article 46 of the Convention.
According to the Government, the Commission should not have admitted the application when it
was submitted on February 15, 1991, for lack of compliance with the requirement of prior
exhaustion of domestic remedies to which Article 46(1) of the Convention refers, since at that
time the criminal proceedings brought in response to the death of the youth Genie-Lacayo were in
progress. In support of its objection, Nicaragua refers to the judicial proceedings before the
State's military criminal authorities and their multiple procedures. It affirms that the objections
are not interposed with respect to the exhaustion of remedies referred to in Article 46(2)(a); that
the injured person has not been prevented from exhausting the remedies and that there has not
been an unjustified delay in the administration of justice.
28.
The Commission asks that this objection be dismissed since the party that invokes nonexhaustion of domestic remedies has the obligation to specifically identify these remedies before
the Commission and Nicaragua has not done so. It adds that the internal remedies are fully
exhausted since the regular criminal prosecution concluded on December 20, 1993 with the
Supreme Court's judgment. The Commission also alleges that Nicaragua's military criminal
jurisdiction is not independent, that the enforceability and application of Decrees 591 and 600 is
incompatible with the object and purpose of the Convention, and that the delay in the criminal
investigation of the death of Jean Paul Genie-Lacayo cannot be justified by excessive workloads of
the Judicial Branch, as has been done in this case.
29.
In the instant case, the Commission's petition refers to Nicaragua's violation of Articles 8
(Right to a Fair Trial), 25 (Right to Judicial Protection), and 24 (Right to Equal Treatment) of the
Convention, "as a result of the Judicial Branch's reluctance to prosecute and punish those
responsible and to order the payment of reparations for the damages caused" by the death of
Genie-Lacayo. The Court feels that the articles invoked by the Commission refer to the
administration of justice and are closely related, as is logical, to the "internal remedies" whose
non-exhaustion Nicaragua alleges.
30.
The file naturally contains arguments by both parties on this matter and copies of the
judicial proceedings have been added. All these documents show that the subject of nonexhaustion of internal remedies is related to the merits since it has to do with the judicial
remedies available in Nicaragua as well as their applicability and effectiveness. On another
occasion, this Court stated as follows:
In such cases, given the interplay between the problem of domestic remedies and the very violation of
human rights, the question of their prior exhaustion must be taken up with the merits of the case.
(Velásquez Rodríguez Case, Preliminary Objections, Judgment of June 26, 1987. Series C No. 1, para.
94; Fairén Garbi and Solís Corrales Case, Preliminary Objections, Judgment of June 26, 1987. Series C
No. 2, para. 93, and Godínez Cruz Case, Preliminary Objections, Judgment of June 26, 1987. Series C
No. 3, para. 96.)
31.
Under such circumstances and because of the stated reasons, the Court shall join this
objection to the merits.